1. Introduction
The Child Law Project attends the Special Care List in the High Court which is held every Thursday during court terms. This report is based on the observations of the Child Law Project court reporter who attended the majority of the weekly Special Care List hearings over the course of a fifteen-month period from 15 July 2021 to 20 October 2022.
It has not been possible for the Child Law Project to attend every special care matter that comes before the High Court, including applications for special care that were brought before the High Court on dates other than the usual Thursday list.
1.1 Introduction to Special Care
The objective of special care, according to the Department of Children, Equality, Disability, Integration and Youth is “to be short-term, stabilising and safe care in a secure therapeutic environment, which aims to enable a child to return to a less secure placement as soon as possible based on need”.
Special care units differ from general residential care in a number of ways: the units are secure, the child is detained, they offer higher staff to child ratios, education is on-site and there is specialised input such as psychology services.
There are currently three mixed gender special care units, each of which is operated by the CFA. These are Ballydowd (7 beds) and Crannóg Nua (7 beds) both located in Dublin and Coovagh House (4 beds) which is located in Limerick. Hence, the capacity within special care in Ireland is 18 beds, when fully staffed. The availability of beds places a cap on the number of children who can be admitted to special care at any one time.
1.2 Legal Provisions regarding Special Care
The High Court may detain a child with complex and challenging behavioural problems in special units for therapeutic and educational purposes. Prior to 2018, the High Court acted under its inherent jurisdiction sought and since 2018 a statutory framework for such an intervention has been in place.
The relevant law is Part IVA of the Child Care Act 1991 which comprises one section, section 23, which is divided into 30 subsections from 23A to 23NP. Under section 23C, the provision of special care is defined as the provision to a child of:
- “care which addresses –
(i) his or her behaviour and the risk of harm it poses to his or her life, health, safety, development or welfare, and
(ii) his or her care requirements, and includes medical and psychiatric assessment, examination and treatment, and - educational supervision, in a special care unit in which the child is detained” […].
Sections 23F and 23H set out conditions that must be present for both the Child and Family Agency (CFA) to apply for a special care order and for the High Court to grant such an order. Five conditions can be identified:
- the child must be between the age of 11 and 18 years; (s 23F(1));
- the behaviour of the child poses a “real and substantial risk of harm to the child’s life, health, safety, development or welfare”; (s 23F(2)(a));
- other forms of care provided by the CFA (for example foster or residential care) or treatment and services provided for under and within the meaning of the Mental Health Act 2001 will not adequately address the child’s behaviour and risk of harm and care requirements (s 23F(2)(b));
- the child requires special care to adequately address their behaviour and risk of harm and care requirements which the CFA cannot provide to the child unless a special care order is made in respect of that child (s 23F(2)(c));
- the court must be satisfied that a special care order is in the best interests of the child. (s 23H(1)(h)).
The statutes also provide for an application to be made for an initial ex parte interim special care order for a period not exceeding eight days and a further application on notice to the parents for a period not exceeding 14 days (ss 23L(3) and 23M).
The legislation does not envisage a long stay for a child in special care. An initial order may be granted for a period of up to three months and may be extended on two occasions, hence the maximum period a child may remain under a special care order is nine months. ss 23H(2) and 23J.However, at the end of this period a fresh special care order may be sought and granted if required. The CFA is the only body permitted to apply for a special care order or extension of that order.
The High Court must carry out a review of the child’s progress in each four-week period for which a special care order has effect to consider if the child continues to require special care. s 23I(1) and (4).
2. Introduction to High Court Special Care List
It is usual practice that a High Court judge is assigned to oversee the Special Care List over a prolonged period, hearing cases every Thursday during court terms and becomes very familiar with the cases that are before the Court.
Most matters are heard during the Thursday Special Care List. However, on occasion the High Court was required to hear an urgent matter and at the discretion of the sitting judge an application for a special care order was heard on a day other than a Thursday. In addition, applications for an extension to an existing special care order are usually brought in the Thursday list but where the order was due to expire prior to the date of the next Thursday list sitting the matter was heard on another day.
The assigned High Court judge usually held two formal Special Care List hearings during the summer vacation (in August and September) so that matters could be reviewed within the required period under the Child Care Act 1991. Where a special care application needed to be brought during the vacation period, it could be brought before the High Court judge on duty during the vacation period.
Since the Covid-19 pandemic the High Court Special Care List has been heard remotely. Although most court matters have resumed in-person hearings or provide for hybrid hearings, the Special Care List has continued remotely. In advance of the Thursday Special Care list, the High Court judge overseeing the list is provided with an e-booklet of the matters listed which contains the relevant affidavits and reports. There is a deadline for the e-booklet and reports to be provided to the judge so that he has an opportunity to review and consider them and the issues arising in advance of the list. The Special Care List then proceeds by way of affidavit evidence and no oral evidence is heard during the Thursday list. If oral evidence is required or if there is a more complex contested hearing, the High Court judge can facilitate an in-person hearing but the majority of matters are held remotely.
The legal representatives of the CFA attend all remote hearings. A guardian ad litem (GAL), with legal representation, was appointed in each case we attended in the Special Care List. Where there was a respondent parent, they usually had legal representation. On a few occasions where the parent’s legal representation were unable to get adequate instructions the judge discharged the legal representative with liberty to apply if the parent wished to re-engage with the special care process. Parents were also provided with the opportunity to log in to the remote hearing if they wish.
At the child’s request, the High Court judge arranged to meet with and hear the views of a child who was in special care. Since the Covid-19 pandemic such meetings were usually held remotely on platforms such as Zoom. The GAL was in attendance at these meetings.
3. Overview of Cases heard under Special Care List
In the period between 15 July 2021 and 20 October 2022, the proceedings before the Special Care List that were observed by the Child Law Project concerned 48 children. Some matters concerned new applications that came before the court during this period while others concerned children already admitted to special care. Other matters were listed for post-discharge review where the special care orders had expired or had been discharged prior to 15 July 2021 and were still under the review of the High Court.
During the 15-month period under review, of the 48 children whose cases were observed by the Child Law Project 22 were girls (45.8%) and 26 were boys (54.2%). In a small number of cases, an issue of gender identification arose.
Under the Child Care Act 1991, a special care order can only be made in respect of children who have attained the age of 11 years and the special care regime cannot apply to children once they have reached the age of 18 years. Many of the 48 children had birthdays while they were in special care so it is not possible to give an exact age breakdown of all the children during this period. However, the majority fell within the 15 to 17-year age bracket and there was a high number of children aged 17 years. However, some cases concerned young children, including:
Child aged 11 admitted to special care
A special care order was made in respect of an 11-year-old boy. The court was told that he was the “youngest child ever in special care”. The level of violence of that child was described as “extraordinary”. The concerns which led to his admission to special care included fire-setting, substance abuse, dysregulation, possible exploitation and sexual abuse, sexualisation and a negative peer group, engagement in illegal activity and potential criminalisation with a “litany of PULSE entries”. The child had a diagnosis of attention deficit hyperactive disorder (ADHD).
The young child was also the subject of care proceedings before the District Court. Due to the level of behaviour of this child he spent eight of his initial 14 weeks in special care in single occupancy and due to his violent behaviour the staff were described as “the walking wounded”. The child was in special care for in excess of 11 months.
Child aged 12 admitted to special care
Another very young child who was brought into special care was a 12-year-old boy. The child came into care with a variety of problems including non-compliance with medication which was essential to treat a medical condition. The child had a fascination with criminal gangs and a vulnerability to exploitation and had been exploited by the “criminal underworld drug trade”. The child had aggressive outbursts and suicidal behaviour and had a diagnosis of ADHD, autistic spectrum disorder (ASD) and an attachment disorder.
3.3 Reasons for Admission to Special Care
Grounds cited as grounds for the admission of the 48 children into special care included:
- emotional and behavioural difficulties;
- engaging in high-risk behaviour;
- violence posing a risk to others and to themselves;
- engaging in criminality;
- alcohol and substance abuse;
- being at risk of exploitation from criminal gangs and negative peer groups;
- being at risk of sexual exploitation; and
- being at risk of self-harm and suicidal ideation.
There were also a small number of cases in the list which involved an additional complexity, such as gender identification issues.
Many of the children also had a diagnosis of post-traumatic stress disorder (PTSD), ADHD, ASD or a form of intellectual disability, including learning difficulties and cognitive impairments. Some of the children had their diagnosis prior to being admitted to special care but sometimes the diagnosis was only made after assessments carried out while in special care. In a few cases a diagnosis of ADHD or ASD occurred very late for the child when they were aged 16 or 17 and near the age of majority. These assessments and diagnoses sometimes assisted in providing an explanation for some of the behaviours of the children and fed into appropriate treatment and identifying suitable step-down placements for them.
From our observations in court, we became aware that over half of the 48 children were also subject to care proceedings before the District Court. As our data is based on what we heard discussed in court (as opposed to a review of the child’s file) the actual figure may be higher. After a child is discharged from special care, if the High Court is aware that a child is also under review in the District Court, the matter may not be listed for as many post-discharge reviews in comparison to a child who is not also before the District Court. If a child is not involved in care proceedings before the District Court there is usually a longer period of post discharge review in the High Court Special Care list.
3.4 Duration of Special Care Orders
A special care order is for an initial period of three months with the possibility of two further extensions (a total period of nine months), however the practice is that many children are deemed to require the full nine months and for some a fresh order may be made.
Many of the 48 children reviewed during this period were the subject of a number of subsequent special care orders. Short orders were the exception rather than the norm in the Special Care List. This can be seen from the comments made by the judge in a case where the boy had only been in special care for a six-month period, he said it was “one of the cases six months in special care actually did some good for this young fella and he is better and everybody seems to accept that.”
The majority of the 48 children in the Special Care List were in special care for a long period of time or had a number of re-entries into special care over a number of years. There were several reasons for this such as the complexity of the cases and the lack of available step-down placements to allow the child to transition out of special care. Examples of the duration of time children spent in special care included:
- A 15-year-old girl at risk of sexual exploitation by older adult men had been in and out of special care and had been the subject of three special care orders (over 9 months).
- A 17-year-old girl was in special care for in excess of 17 months.
- A 17-year-old girl was in special care for 22 months; the GAL described it as a complex case as the length of time in special care “was indicative of her needs”.
- A 15-year-old girl had been in special care for approximately 21 months at the time of discharge.
- A 17-year-old girl was in special care for in excess of two years.
- A 17-year-old girl was in special care for in excess of two and a half years and shortly before the child reached the age of majority the CFA informed the court of their intention to make an application for wardship.
- A 17-year-old boy had been in and out of special care over a three-year period due to drug addiction issues and was the subject of a fourth special care order.
4. Key Issues Arising from the Cases Attended
4.1 Lack of Step-Down Placements
A child leaves special care when the order expires or is discharged and the child usually transitions into a step-down placement. However, there is a chronic issue with the lack of appropriate step-down placements. The issue of the lack of step-down placements arises nearly every week in the Special Care List and the judge has frequently commented that the issue “is dragging on too long” and that it is “the single most issue of controversy in this list”. The examples below demonstrate the impact on children of there being no step-down placements and hence the child is unable to leave special care in a timely manner.
Judge asked what is wrong with the system to have this issue arising time and time again
In early 2022 during the review of a case where there were issues identifying an appropriate step-down placement for a child who had been in special care already for a period of 19 months, the judge commented that the previous day he had been reading the 2017 report of the Child Care Law Reporting Project and that reading comments quoted of the judge in the Special Care List at that time in respect of the lack of step-down placements was like hearing himself. The judge asked: “What is wrong with the system to have this issue arising time and time again”.
Judge said special care risks being used as a holding facility
In another case involving a child who had already been in special care for approximately 16 months the judge commented:
“This case also pulls up the issue of the inability of the CFA to transition children out as speedily as we would like. [This child] is going on 15-16 months in special care. It throws up the concern that applications and orders are being used to have a holding facility due to the inability of the CFA to have step-down placements.
“I appreciate the difficulty in sourcing placements is hugely complex but there are statutory obligations and functions and it is wrong if special care applications are being made because the CFA is unable to provide residential care in another placement where the children concerned could be looked after. This is particularly so as detention in special care carries the risk that the child will become institutionalised and any progress made in special care will be set at nought as a result or the situation will regress even further.”
Judge expressed concern that the child was being institutionalised
During the review of a girl who had been in special care for in excess of 13 months there was a concern that the child was becoming institutionalised and the judge made the following comments:
“Almost every case so far in the list and indeed in almost every list this issue of step-down placement arises.
“In many of these cases at present the case can be made that there is no reason at all for the child to be detained in special care except that a suitable placement is not available. The non-availability of step-down placements for children who are ready to transition out of special care is a recurring problem which appears to be getting worse.
“The CFA needs to address the issue. Special care orders cannot be used to provide an alternative to an appropriate step-down placement and I expect the issue to be addressed in a more fulsome manner in this case …. If it is put up to the court to refuse an extension order in circumstances where it is obvious the only reason is because the CFA cannot provide a placement then the CFA will have difficulty.”
In the same case almost two months after the above comments were made no appropriate step-down placement had been identified by the CFA.
Judge:
“Nothing has happened in the intervening months, that is the bottom line here. There is no point in the CFA putting on paper the significant detail concerning the efforts made to find a placement when none has been found … this nonsense is going on time and time again with the CFA coming before the court explaining the difficulty of step-down placements, [it] has got to come to an end.
“It is not for this court to organise a placement for the CFA. I am told in many cases, if not all, that funding is not the issue. We are dealing with a statutory body who has resources, it would appear, and staff to provide the answers required to fulfil its statutory obligations and unfortunately it is past the point where we are getting excuse after excuse in respect of the difficulties with appropriate step-down placements. Special care and special care orders are not a holding cell for children who ought not to be in special care.
“In many of the cases before the court there is almost a frank acknowledgment that the only issue preventing the child leaving is the absence of a step-down placement for the child in the special care list. [We] cannot leave children in special care indefinitely when they deserve to be out of special care but cannot be because the CFA does not have a step-down placement available that ought to be available.”
Judge said he is becoming weary and sounding like a stuck record
In yet another case involving a boy who was awaiting the identification of a step-down placement the judge commented:
“The problem with step-down placements is becoming something of a crisis in this list. [In] almost every case that is mentioned the issue arises. The CFA really need to do something radical in terms of overhauling the system of identifying step-down placements when they need them. The issue is there for years at this stage and seems to be getting worse. Relay the court’s concerns again to the CFA. I am becoming weary about this issue and sounding like a stuck record and it needs to be addressed.”
Judge said the residential care system appears to be broken
The judge has commented that a significant period of time is consumed by reference to the unavailability of step-down placements and the refusal by private providers to provide step-down placements. There appears to be a difficulty in finding providers who are prepared to take on the children who are regarded as high risk in residential settings.
Judge:
“If it is broken it needs to be fixed and it does at this point of time appear to be that the system is broken in terms of the availability of step-down placements. The situation has existed for years and it is not satisfactory and something needs to be done about it”.
Judge expresses concern about children transitioning directly home
A few cases have arisen in the Special Care List where there has been no appropriate step-down placement available and the child has transitioned home with significant supports in place. The judge has commented that it is “unusual in this list to have a child step-down back to their parents’ care”, that the level of support required is a very high level of support, that without the necessary supports he would be afraid of the child coming back into the Special Care List, and that there should be parallel planning in case the placement at home breaks down. There has been a varying level of success in respect of children transitioning directly home and some have returned to concerning behaviours resulting in further referrals to the Special Care Committee.
4.2 The Location of Appropriate Step-down Placements
In some cases, an issue arose in respect of the location of the proposed step-down placement and how this location may make the success of a placement more challenging. There has been difficulties to get a child to “buy into” and accept a step-down placement which was located in a rural location or at a distance from the preferred location, as there is a need for cooperation of the child in terms of the transition out of special care.
Dublin city placements
In a case where a child had expressed a preference for a placement in Dublin the judge noted that “the children in units speak to one another” and are aware when another child has been assigned a placement which can have “a knock-on effect for other children to want the same.” The judge commented that it is “not always possible to get placements in Dublin city centre and not always wise to provide placements in Dublin city centre”.
Inner city placement
In another case involving a 15-year-old boy who had previous involvement with criminality and drugs the GAL expressed reservations about a placement in the inner city and stated that placing the child in an “urban hotspot” was “courting disaster bringing him back into the very environment that contributed substantially to having him in special care in the first place.” The judge also expressed reluctance in respect of the location of this proposed step-down placement:
“All the indicators are that doing so would put the child back into the position of danger in terms of welfare, allowing him to consort with drug abusers, drug pushers and those involved in criminality and giving him easy access to all of the temptations that have caused him problems. The CFA have an obligation to provide appropriate and suitable step-down placement and it will take some persuading to persuade me that the placement in the north inner city is a good placement.”
The judge expressly stated that he was not criticising the placement provider who provides an “excellent service and is second to none for vulnerable people in the community” but the issue was in respect of the location of the placement given the history of the child and what brought him into special care in the first place. The judge said that it was an “indictment of the system that this young man with his problems and history is being placed in a city centre residence with the temptation on his doorstep in greater abundance I believe than anywhere else in the country”.
4.3 Placements out of the jurisdiction and lack of specialist facilities
The High Court Special Care List included a small number of children and young people with very complex emotional and behavioural needs who pose a danger to themselves and others. Some of these cases involved extreme levels of self-harm, suicidal ideation and suicidal attempts. Many of the complex cases involved children who had spent lengthy periods in special care and required a bespoke placement or specialist facility.
Previously where appropriate some children were transferred to placements outside the jurisdiction such as the UK at locations such as St Andrews. During the period under review a number of cases mooted the possibility of a referral to St Andrews or another placement outside of the jurisdiction. However, it does not appear that any of these children were transferred outside the jurisdiction during this period. A number of legal complexities have arisen post-Brexit in respect of placements in the UK. Most of the referrals made to the UK have also been refused as locations such as St Andrews have a number of persons already on their waiting list ahead of the Irish children and even if assessed and accepted as a suitable candidate there are extremely lengthy waiting periods.
The High Court judge taking the Special Care List has frequently commented that some of the in-house therapies available in placements such as St Andrews are not available in Ireland, and that there is also a difficulty with the difference of the definition of mental illness compared to the UK. The judge has commented on the gap in the services available in Ireland and a gap in respect of some of the psychiatric services that are required for these children. It has been commented in one of the complex cases that some of the special care units are not equipped to deal with some of the more complex cases coming into the Special Care List.
Judge:
“It is the problem with cases in the list. Someone in the CFA is saying special care is not capable of dealing with many of the complex cases which exist in special care. To my mind there are more complex case in the list then non-complex.… Significant behaviour issues, many of them which can legitimately be described as mental health issues, but fall outside the definition that require psychiatric services in Ireland.
“For example, personality disorders have treatment in the UK but not in Ireland because of the definition. The problem that exists is children falling between services provide by the CFA and HSE. There exists no equivalent of Tavistock or St Andrews in Ireland. [Children] need treatment and intervention available in those centres. [This issue is] going back for years and not being dealt with by the legislature or those in power.
“The point made by [the barrister] for the GAL, which is obvious by reading the affidavit, how can this court send children who need care to special care units where the special care units cannot provide the treatment required? It is not in the gift of the High Court to solve problems that exist because of the failure to deal with the issue, a long-standing and identified issue, and needs to be addressed at a high level in the executive.
“[We] need instructions to solve the problem where children are languishing in special care and are supposed to be receiving treatment they should be getting. This is a primary issue not being dealt with and the can is being kicked down the road time and time again. The child somehow moves out of special care and then the problem disappears for another period until the same thing happens in another case.
“[It is] a very serious dereliction of duties towards these children and abrogation of responsibility about what they are entitled to and it needs to be addressed as a matter of urgency….. The court should not have to put a patch on deficiencies in the system and maintain the patch from week to week while all the time the risk [continues]… It is difficult to understand the lack of appreciation evident to me of ongoing risk because appropriate psychiatric care is not available and because the residential unit in which the child is presently detained is not equipped from the point of view of the psychiatric care required. This system is failing this child.”
Many of the cases in the Special Care List have required input from the HSE in respect of the children’s time in special care and also for aftercare planning once the child turns 18 and issues of funding between the CFA and the HSE have arisen. The judge has commented that in some of the more complex cases that there is a problem in children falling between the services provided by the CFA and HSE. The HSE has been legally represented in a number of cases in the Special Care List and in particular in respect of complex cases and the psychiatric care and service available for the child in the special care unit.
In one of the complex cases where the child would require long term care into the future the HSE was represented by both junior and senior counsel. During that case the judge commented on the “ongoing tension” between the CFA and the HSE and that the communication between the CFA and the HSE “had to improve”. The position of the HSE in the case was that “the level of disability is not enough” and the issue arising was which agency would ultimately have responsibility for the child. The judge commented that there may need to be “clarification in the regime to avoid children falling between stools.”
Having regard to the position taken by both the CFA and the HSE the judge commented:
“There is a risk if not likelihood that this child as a young adult will fall between the gaps that exist because of the mental health regime and the definitions contained in it, and the disability regime and the definitions contained in it, and the respective statutory functions of the CFA and HSE. If there is substance in what both sides say this is yet another case where there is a need for some legislative reform.”
